Editorial

What is wrong with this picture?  It has been 5 years since TAC and the CCD Housing Task Force published our first policy report about the negative impact of “elderly only” housing policies.  It has been over 10 years since we first warned federal officials about the potentially negative consequences of these laws – unless a sustained and pro-active effort was made to prevent discrimination, create new housing for people with disabilities, and oversee the implementation of these laws by PHAs and HUD assisted housing providers.  

Perhaps the most surprising aspect of our work on this issue has been the difficulty we have had – and continue to have – in our effort to explain to federal officials what is a very simple story.  Ten years ago, there were over one million units of HUD subsidized housing that people with disabilities could access, and now 25 percent of them are gone.  It seems like it would be such a simple issue to quantify…with an inventory of HUD assisted housing!  

For this issue of Opening Doors, we relied on data from HUD and two federally funded reports, including one conducted by the U.S. General Accounting Office (GAO).  We must point out that despite our use of the information contained in the GAO report to assess the impact of elderly only housing designation, the GAO concluded in 1998 that elderly only designation had not negatively affected people with disabilities.  Their conclusion was astonishing – and we believe erroneous – for several reasons:  

1. The GAO came to the shocking conclusion that if owners had illegally implemented elderly only housing policies prior to 1992 – in other words, if they had previously discriminated against people with disabilities by illegally restricting occupancy to elderly households before the 1992 law was passed – these units somehow did not count when assessing the impact of the law; and

2. The GAO report concluded that as long as HUD assisted housing owners still admitted a few people with disabilities – even if it were only a small percentage of the units in a development or only to people with physical disabilities – the owner had not implemented elderly only housing.  We believe that owners who were required to admit people with disabilities to all of the units in a development before 1992 – and now only admit people with disabilities to a few set-aside units – can be considered as having elderly only policies in place at their property!

 Fortunately for people with disabilities, key members of Congress did not consider the GAO report as the “final word” on elderly only housing policies.  

What should this picture look like?  No one is arguing that elderly only housing laws should be undone.  That approach was abandoned long ago, and was never realistic given the broad support for housing for elderly people.  But what we have been arguing, and will continue to argue, is that federal housing policies have virtually ignored people with disabilities, especially since 1992.  The single exception is Congress’s commitment to provide new Section 8 vouchers linked to designation.  

Thus far, HUD has completely ignored the discriminatory practices linked to designation.  Section 811 funding, which could help replace the supply of lost housing, has been cut.  Little effort has been made to ensure that state and local housing officials direct a reasonable amount of HOME funds towards projects that people with disabilities can afford.  

Perhaps there is a little good news in this picture.  Disability advocates are pleased to see the findings in the HUD funded study conducted by Abt Associates.  More than any single document, the Abt Associates study proves what disability advocates have been saying for years about designation.  TAC and the CCD Housing Task Force urge you to use this report to engage in a dialogue with public and assisted housing providers in your community.  Convince them that they need to be thinking about both groups – people with disabilities as well as elderly households.  

The Editors

What's Wrong continued from top

Elderly Only Housing Laws

Before 1992, according to federal law, owners of certain HUD subsidized housing developments were required to make these apartments available to both elderly households and non-elderly people with disabilities on an equal basis.  Elderly only housing laws (beginning with the Housing and Community Development Act of 1992) fundamentally altered this equal access policy by permitting owners to greatly restrict or completely prohibit non-elderly people with disabilities from moving into these properties.  These federal policies are often referred to as “elderly only designation” and affect two different types of HUD subsidized rental housing:  

HUD Public Housing: Elderly/disabled public housing buildings owned by Public Housing Authorities (PHAs).  Nationwide, there are approximately 500,000 studio and one-bedroom public housing units currently subsidized by HUD.  This housing is affordable to the lowest income people with disabilities because generally tenants are required to pay only 30 percent of their income for rent and utilities; and HUD Assisted Housing: Privately owned federally assisted housing financed through various HUD housing production programs (i.e. Section 236, Section 211(d)(3), Section 8 New Construction and Substantial Rehabilitation, etc.) that have been combined with long-term Section 8 contracts to make the housing affordable to the lowest income people.  At the time that elderly only designation laws were passed, there were over 600,000 efficiency and one-bedroom units in HUD’s assisted housing “portfolio.”  

It is important to note that before elderly only housing laws were passed, these 1.1 million apartments were virtually the only federally subsidized housing units available for people with disabilities, including units that were barrier free or that could be modified at no cost to the tenant.  After the Fair Housing Amendments Act and the ADA were passed, it became much easier – at least theoretically – for people with disabilities to get on waiting lists and eventually move into this housing.  

As the number of people with disabilities moving into this housing increased in the early 1990s, a great debate ensued which unfortunately pitted elderly households against non-elderly people with disabilities.  The debate centered around the question of whether the “mixing” of elderly households and non-elderly people with disabilities in the same buildings was a feasible housing policy.  In the end, Congress decided that the owners of these 1.1 million units could “reserve” them – subject to certain conditions discussed below – primarily for elderly households.  Despite the obvious negative impact this decision would have on people with disabilities, until 1997 there was no new funding provided to make up for the loss of subsidized housing for people with disabilities.  

Under the designation laws, PHAs are allowed to create disabled only buildings as well as elderly only buildings.  Some policy makers thought that by permitting disabled only buildings, the federal government would solve the problem of where younger people with disabilities could live.  The disability community has always been opposed to this “solution” because: (1) most people with disabilities do not want to live in disabled only housing; and (2) disabled only housing encourages PHAs to steer people with disabilities to poorly maintained housing in marginal neighborhoods while reserving the more attractive housing in desirable locations for elderly households.  

Elderly Only Designation Process

To assess the full impact of elderly only designation laws on the supply of subsidized housing available to people with disabilities, it is important to understand the basics of how designation policies are actually implemented by housing providers.  The two types of HUD subsidized housing referenced earlier have very different requirements for designating elderly only housing.  

HUD Public Housing Requirements

PHAs must obtain HUD approval to designate public elderly/disabled housing buildings as elderly only.  PHAs obtain HUD approval by submitting a PHA Allocation Plan which is intended to analyze the impact of the designation and propose alternative housing resources (i.e., Section 8 tenant based vouchers) for people with disabilities.  TAC’s review of a sample of PHA Allocation Plans indicates that some PHAs may not be requesting the Section 8 vouchers needed to replace the supply of public housing units that will no longer be available to people with disabilities.  

HUD Assisted Housing Requirements

Owners of HUD assisted privately owned housing are permitted to have elderly only policies without seeking HUD approval for these policies.  Because there are different rules that apply to the myriad of HUD programs in HUD’s assisted housing portfolio, the designation of this housing as elderly only has been very problematic.  Currently, without contacting each of these properties individually, there is no way to determine if owners and managers of HUD assisted housing are properly using elderly only policies.  As will be noted in the discussion below, this lack of an “inventory” of HUD assisted housing – combined with the complexity of the designation rules – has, at best, caused confusion and, at worst, fostered discriminatory tenant selection practices by owners and managers.  

It’s important to note that non-elderly people with disabilities living in federally subsidized housing designated elderly only are protected from displacement under federal law.  In other words, they should not be asked to move out, or be required to move out because the housing has been designated.  Nor should they be encouraged or offered incentives, such as a Section 8 voucher, to move to other housing, unless it is clearly their preference and choice to move.  

Assessing the Impact of Elderly Only Housing

Assessing the impact of designation involves two important issues:  

• Estimating the actual loss of HUD subsidized housing units available to people with disabilities as compared to the number of new subsidized housing resources created by Congress to off-set this loss; and

• Assessing the impact that designation has had on housing discrimination experienced by people with disabilities.  

More housing units are designated as elderly only every day.  Therefore, any assessment of the loss of housing from designation can be done only as a “point in time” estimate will undoubtedly increase as more buildings are designated in the future.  

In 1996, TAC and the CCD Housing Task Force published Opening Doors: Recommendations for A Federal Policy to Address the Housing Needs of People with Disabilities which predicted the negative impact that elderly only designation would have on the supply of subsidized housing available for non-elderly people with disabilities.  This report estimated that as many as 273,000 units of housing would be designated elderly only by the end of the year 2000.  This estimate represented approximately 25 percent of the efficiency and one-bedroom apartments funded by HUD with project-based Section 8 subsidies.[i]  

Exactly how accurate was the TAC/CCD Housing Task Force estimate when compared to information now available from other studies and reports?  Again, because of differences in the law, the answer to this question must be provided in two parts:  

1. The loss of HUD funded public housing units owned by PHAs; and

2. The loss of HUD assisted housing owned and managed by private owners.  

1.         Loss of Public Housing Units

HUD records indicate that through July 30, 2001 , approximately 68,500 public housing units have been designated as elderly only.  Since 1994 when HUD first began approving PHA Allocation Plans, approximately 186 PHAs have sought HUD’s permission to exclude non-elderly people with disabilities from some of their public housing buildings.  As shown in Table 1, on average approximately 9,153 units of public housing have been designated as elderly only each year since designation first became legal.  [NOTE:  These estimates do not include those units that may have been illegally designated elderly only without seeking HUD approval.]  

Elderly only designation has involved many of the largest PHAs in the United States, as well as numerous medium and smaller PHAs.  Table 2 lists a random sampling of PHAs that have HUD approved Allocation Plans and the dates they were approved.  Some PHAs have designated virtually all of their studio and one-bedroom units as elderly only leaving no supply of public housing for non-elderly people with disabilities.  Other PHAs have left one or two buildings as “mixed” elderly/disabled buildings; although, in practice, these buildings can end up being occupied primarily by people with disabilities.  Other PHAs have limited elderly only housing policies to one building, or a portion of a building, in a larger complex.   

Table 1:  Tracking the Annual Designation of Elderly Only Public Housing

   *The 1995 figures include four Allocation Plans that were approved in late 1994.

**13 PHAs that submitted approved Allocation Plans have applied a second time to HUD for additional units to be allocated elderly only.  Therefore, these PHAs have been counted twice, once for each year that they submitted an approved plan.    

Table 2: A Selection of Public Housing Agencies with Units Designated Elderly Only*